The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface to the Second Edition
• Acknowledgments
• Abbreviations
• Part I
• 1: Introduction
• Supplementary Note On the Introduction
• 2: “privileges Or Immunities”
• Supplementary Note On the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
• 3: The “privileges Or Immunities of a Citizen of the United States”
• 4: Negro Suffrage Was Excluded
• Supplementary Note On Suffrage
• 5: Reapportionment
• 6: The “open-ended” Phraseology Theory
• 7: Segregated Schools
• Supplementary Note On Segregated Schools
• 8: Incorporation of the Bill of Rights In the Fourteenth Amendment
• Supplementary Note On Incorporation
• 9: Opposition Statements Examined
• 10: “equal Protection of the Laws”
• 11: “due Process of Law”
• 12: Section Five: “congress Shall Enforce”
• 13: Incorporation of Abolitionist Theory In Section One
• Supplementary Note On Abolitionist Influence
• Part Ii
• 14: From Natural Law to Libertarian Due Process
• Supplementary Note On Natural Law and the Constitution *
• 15: “the Rule of Law”
• 16: The Judiciary Was Excluded From Policymaking
• Supplementary Note On Exclusion of the Judiciary
• 17: The Turnabout of the Libertarians
• 18: Liberals and the Burger Court
• 19: The Legitimacy of Judicial Review
• Supplementary Note On the Role of the Court
• 20: Why the “original Intention”?
• Supplementary Note On Original Intention
• 21: Arguments For Judicial Power of Revision
• 22: “trial By Jury”: Six Or Twelve Jurors?
• 23: Conclusion
• Supplementary Note On the Conclusion
• Appendix A: Van Alstyne’s Critique of Justice Harlan’s Dissent
• Appendix B: Judicial Administration of Local Matters

Preface to the Second Edition

The publication in 1977 of Government by Judiciary provoked a storm of controversy, leading a critic to exclaim in 1983 that “refuting Raoul Berger has become a cottage industry.” 1 Criticism flourishes unabated. A critic more candid than most observed that

Each critique prompted me to reexamine and retest my conclusions, for scholars are apprehensive whether they have overlooked a fact that will explode their inferences. “The great tragedy of science,” Thomas Huxley remarked, is “the slaying of a beautiful hypothesis by an ugly fact.” 3 In the eighteen years since publication, I have indited forty-odd responses, in which each respective critique is examined in great—and, I am afraid, tedious—detail. The interested reader will find a bibliography of my responses at the end of the book.4

These critiques prompted me to preserve the original text in this second edition so that readers may in the future have before them what excited so much controversy. The materials that have accumulated since 1977 are set forth in greatly abbreviated form as a supplement to a relevant chapter. New material added to the footnotes of the original text is identified by brackets.

A word in extenuation of the profuse quotations. Since my views have been and remain under assault, I prefer not to rely on mere expressions of my opinion but to employ appraisals by others.5

This revision was completed in my ninety-fifth year, so the gentle reader should cast upon it a charitable eye, bearing in mind Dr. Johnson’s remark about “a dog’s walking on his hind legs. It is not done well; but you are surprised to find it done at all.” 6 Finally, I am indebted to the Earhart Foundation for a grant that facilitated completion of this second edition.

Raoul Berger

Concord, Massachusetts 1996

[1.]Richard B. Saphire, “Judicial Review in the Name of the Constitution,” 8 U. Dayton L. Rev. 745, 753 (1983).

[2.]Larry A. Alexander, “Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique,” 42 Ohio St. L.J. 3, 4 (1981). C. Vann Woodward wrote, “Raoul Berger’s Government by Judiciary raises scores of fascinating questions that no one in the field can afford to ignore.” Dust jacket of Government by Judiciary. Sanford Levinson, himself an activist, wrote of attempts to construct a defense of the modern cases: “it is naive to pretend that the construction will be an easy task or that we can so easily shed the view of the Constitution, and its limits, articulated by Berger.” Sanford Levinson, “Book Review,” Nation, Feb. 26, 1983, at 248, 250.

“There is no history without polemic . . . without originating in antagonism to something which exists and which it wants to combat and substitute.” Umberto Morra, Conversations With Berenson 103 (1965).

[3.]Oxford Dictionary of Quotations 269 (3d ed. 1979).

[4.]Locke wrote that a rebuttal is required lest victory be “adjudged not to him who had the truth on his side, but by the last word in the dispute.” John Locke, An Essay Concerning Human Understanding 204–206 (Raymond Wilburn ed. 1942). Jefferson urged Madison to reply to Hamilton’s “Pacificus” essays, giving as his reason, “Nobody answers him and his doctrines will therefore be taken for confessed.” Stanley Elkins and Eric McKitrick, The Age of Federalism 362 (1993).

[5.]At the conclusion of his Paradoxes of Legal Science (1928), Benjamin Cardozo wrote, “I may seem to quote overmuch. My excuse is the desire to make manifest that back of what I write is the sanction of something stronger than my own unaided thought.” Selected Writings of Benjamin N. Cardozo 313 (Margaret Hall ed. 1947).

[6.]James Boswell, The Life of Samuel Johnson 290 (Everyman ed. 1992).